San Francisco Chronicle, August 2009

As the deadline draws near for authors and publishers to opt out of a proposed legal settlement allowing Google Inc. to forge ahead with plans to scan millions of books, more opponents of the landmark deal are stepping forward, and the local literary world is growing more perplexed.

The agreement, reached in October after two years of negotiations, would resolve lawsuits filed by writers, the Authors Guild and members of the Association of American Publishers against Google for digitizing libraries of out-of-print books and making them searchable online. The deal would allow the Mountain View company to move forward with its ambitious project while establishing a system to sort out and compensate the appropriate rights holders.

But in recent weeks, influential industry organizations, including the National Writers Union and entertainment agency William Morris Endeavor, have come out against the settlement. The public debate between these groups and deal proponents is exacerbating confusion over details in the more than 300-page document, including the ability of authors to seek larger royalties, the amount of control it hands Google over unclaimed works and the broader implications for copyright law.

“Smart people, major players that are sophisticated in the ways of publishing, are still at loggerheads,” said Ted Weinstein, a San Francisco literary agent. He said they’re not just arguing whether the deal is good or bad, “but still expressing disagreement about what exactly it will do. That’s a problem.”

Complex deal

The complexity of the agreement has led some to reject the deal out of hand, including San Francisco author Stephen Elliott.

“The lawyers for the Authors Guild … understand it, Google understands it, but I don’t know any writer who understands it,” said the author of seven books, including “Happy Baby.” “That’s really enough for a ‘no’ right there.”

City Lights Publications, the publishing arm of the 54-year-old San Francisco bookstore, will take part in the settlement, Director Elaine Katzenberger said. But because she’s worried about the impact on traditional copyright protections and unclear on certain details, she is opting for the most restrictive controls over the company’s more than 200 titles: a limited preview that shows up in search results.

The deadline for opting out of the deal completely or filing an objection is Sept. 4. The settlement is still subject to the approval of the U.S. District Court for the Southern District of New York and the final fairness hearing is scheduled for Oct. 7.

Limited scope

Some legal experts believe the growing confusion will create more opposition to the deal, which could factor into the settlement hearing and potentially limit the scope of the books program. But Pamela Samuelson, co-director of the UC Berkeley Center for Law and Technology, said it’s more likely to lead to a sort of collective paralysis that prevents affected parties from taking any action.

Under the agreement, Google will contribute $125 million to set up a Books Rights Registry that will pay participating authors and publishers a settlement fee for works scanned before the agreement as well as 63 percent of future revenue generated from digital sales, subscription fees, advertising and other sources. The company will make scanned works available free at public libraries, through subscriptions at universities and other institutions, and to preview or buy online.

The Authors Guild insists that rights holders retain the ability to negotiate for higher royalties, block displays of their work entirely and change their mind about which books are included at any time.

“Really, the only practical reason to opt out is if you’d like to retain the right to sue Google yourself,” said Paul Aiken, the organization’s executive director.

Google sees the book project as a critical part of its mission “to organize the world’s information.”

“These books represent hundreds of years of human knowledge and to be able to democratize access to that amount of knowledge is a tremendous public good for students, for teachers, for scholars, for everyone,” said Derek Slater, a Google policy analyst.

Some see benefits

Some local authors see personal benefits, too.

San Francisco poet Alice Rogoff doesn’t love every detail of the settlement, but said she’s focusing on the opportunity to earn money for works that disappeared from retail shelves years ago. She has already filled out the settlement claim forms to receive money for two books digitized by Google, one she wrote, “A Ladle-Shaped Woman,” and another to which she contributed two poems.

“I should be incensed that Google scanned my books without permission, but in some ways I’m lucky I’ll get paid for it,” she said.